Romana Balderas v. State of Indiana , 116 N.E.3d 1141 ( 2018 )

FILED
Dec 21 2018, 9:31 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Kevin C. Munoz Curtis T. Hill, Jr.
Emma Jo Ann Mahern Attorney General of Indiana
Munoz Legal, LLC Jesse R. Drum
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Romana Balderas, December 21, 2018
Appellant-Petitioner, Court of Appeals Case No.
17A-PC-3014
v. Appeal from the Clinton Circuit
Court
State of Indiana, The Honorable Bradley K. Mohler,
Appellee-Respondent Judge
Trial Court Cause No.
12C01-1705-PC-444
Baker, Judge.
Court of Appeals of Indiana | Opinion 17A-PC-3014 | December 21, 2018 Page 1 of 7
[1] Romana Balderas appeals the post-conviction court’s denial of her petition for
post-conviction relief after Balderas pleaded guilty to conspiracy to commit
forgery, a Class C felony. Balderas argues that the laches defense does not apply
to her case and that her trial counsel provided ineffective assistance pursuant to
Padilla v. Kentucky, 559 U.S. 356 (2010), by not advising her of the severe
deportation consequences that could accompany a guilty plea. Finding that
laches bars Balderas’s case, we affirm.
Facts1
[2] On January 5, 2005, a confidential informant working with the Indiana State
Police sold Balderas a fake Social Security card and a woman’s resident alien
ID card for $200. At the time, Balderas was not yet a lawful, permanent
resident in the United States. On January 11, 2005, the State charged her with
two counts of Class C felony conspiracy to commit forgery and one count of
Class C felony corrupt business influence. While her criminal case was pending,
Balderas worked with an immigration attorney to become a lawful, permanent
resident.
[3] On March 15, 2006, Balderas pleaded guilty to one count of Class C felony
conspiracy to commit forgery pursuant to a written plea agreement. In
exchange for pleading guilty, the State dismissed the other charges. If found
1
We held oral argument for this case on December 3, 2018, in Indianapolis. We thank both parties for their
stimulating conversations and willingness to answer our questions.
Court of Appeals of Indiana | Opinion 17A-PC-3014 | December 21, 2018 Page 2 of 7
guilty at trial, Balderas could have been sentenced up to eight years for each
Class C felony count with a potential aggregate sentence of twenty-four years.2
Balderas claims that at some point, she informed her criminal attorney that she
was not a lawful, permanent resident and that her attorney did not advise her of
the severe deportation consequences that accompany a guilty plea.
[4] The trial court sentenced her to a two-year term fully suspended to probation.
The State, thinking the case was completed, returned Balderas’s property and
destroyed pertinent evidence such as recordings, cassette tapes, and
photographs. The State retained only photocopies of certain documents.
Balderas became a lawful, permanent resident in March 2015 after marrying her
husband, a U.S. citizen.
[5] On April 28, 2017, Balderas filed a petition for post-conviction relief, arguing
that her trial counsel was ineffective for not advising her that she could be
deported if she pleaded guilty. She also claims that she would not have pleaded
guilty had she known this information. Though Balderas has not been deported,
she is at risk of deportation if Immigration and Customs Enforcement (ICE)
brings an action against her.
[6] At the post-conviction hearing, the State raised the defense of laches and
claimed that it would be prejudiced because Balderas waited almost twelve
years before she petitioned for post-conviction relief. Additionally, the State had
2
Ind. Code § 35-50-2-6(a).
Court of Appeals of Indiana | Opinion 17A-PC-3014 | December 21, 2018 Page 3 of 7
already destroyed key evidence that it would need to defend against a post-
conviction action. The post-conviction court denied Balderas’s petition for post-
conviction relief, agreeing with the State that laches barred her action from
proceeding.
[7] The post-conviction court further held that Balderas’s claim for ineffective
assistance of counsel fails because (1) even if the criminal attorney did not warn
her about the deportation consequences, surely the immigration attorney did;
(2) Balderas’s testimony that she would not have pleaded guilty had she known
about the deportation consequences was not enough to show prejudice; (3) the
State had ample evidence with which to convict Balderas had she gone to trial;
and (4) Balderas received a better bargain by pleading guilty. Balderas now
appeals.
Discussion and Decision
[8] Balderas argues that the post-conviction court erroneously denied her petition
for post-conviction relief, claiming that laches does not bar her case from
proceeding. She also argues that the Padilla standard for ineffective assistance of
counsel should be retroactively applied to her case.
[9] “A petitioner appealing the denial of post-conviction relief stands in the
position of one appealing from a negative judgment.” Mauricio v. State, 941
N.E.2d 497, 498 (Ind. 2011). The petitioner seeking review of a denial of post-
conviction relief must show that the evidence, taken as a whole, “leads
Court of Appeals of Indiana | Opinion 17A-PC-3014 | December 21, 2018 Page 4 of 7
unerringly and unmistakably to a conclusion opposite that reached by the trial
court.” Henley v. State, 881 N.E.2d 639, 643-44 (Ind. 2008).
[10] Balderas first argues that the post-conviction court erroneously found that
laches bars her from seeking relief. We note that Balderas did not challenge the
post-conviction court’s laches reasoning in her initial appellate brief, which
constitutes waiver of that argument. See Bunch v. State, 778 N.E.2d 1285, 1290
(Ind. 2002). However, because the argument is relevant to the appeal and
because the waiver is of the procedural default variety, id., we choose to address
it now.
[11] Our Supreme Court defines the equitable doctrine of laches as:
. . . the neglect for an unreasonable or unexplained length of time,
under circumstances permitting diligence, to do what in law
should have been done. It is an implied waiver arising from
knowledge of existing conditions and an acquiescence in them, the
neglect to assert a right, as taken in conjunction with the lapse of
time, more or less great, and other circumstances causing
prejudice to the adverse party and thus operating as a bar in a
court of equity.
Perry v. State, 512 N.E.2d 841, 842 (Ind. 1987). To raise a successful laches
defense, the State had to prove by a preponderance of the evidence that
Balderas unreasonably delayed in seeking relief and that the State has been
prejudiced by the delay. Williams v. State, 716 N.E.2d 897, 901 (Ind. 1999). On
review, we do not reweigh the evidence or judge the credibility of the witnesses.
Id. We only consider evidence that is most favorable to the judgment, together
with all inferences drawn from that judgment. Id.Court of Appeals of Indiana | Opinion 17A-PC-3014 | December 21, 2018 Page 5 of 7
[12] First, we find that the State proved that Balderas unreasonably delayed filing
her petition for post-conviction relief. Nearly twelve years passed from the time
Balderas originally pleaded guilty (2005) to the moment when she petitioned for
post-conviction relief (2017). We and our Supreme Court have held that such a
length of time can constitute an unreasonable delay warranting the application
of laches. See, e.g., Ware v. State, 567 N.E.2d 803, 805 (Ind. 1991) (“nearly ten
years”); Adams v. State, 512 N.E.2d 404, 405 (Ind. 1987) (“more than five
years”); Oliver v. State, 853 N.E.2d 581, 587-88 (Ind. Ct. App. 2006) (ten years).
Balderas has not offered a credible explanation for the twelve-year delay.
Though she claims that, at the time of her criminal proceedings, she was not
aware of her attorney’s potential duty to inform her about deportation
consequences, she nonetheless continuously faced the risk of deportation and
had more than a decade to petition for relief. The post-conviction court did not
err by finding that the delay was unreasonable.
[13] Second, the State proved by a preponderance of the evidence that it was
prejudiced by the delay. Though the State retained some photocopies of
documents it used in Balderas’s original prosecution, it has already destroyed
and/or returned significant evidence such as recordings, cassette tapes, and
photographs. See Stewart v. State, 548 N.E.2d 1171, 1176 (Ind. Ct. App. 1990)
(holding that the State was prejudiced by delay where it no longer has all the
evidence needed to prosecute defendant). Moreover, significant time has passed
since the State initially prosecuted Balderas, so witnesses’ memories may have
faded, priorities may have changed, and the State’s resources may have shifted
Court of Appeals of Indiana | Opinion 17A-PC-3014 | December 21, 2018 Page 6 of 7
to more pressing criminal matters. Thus, we find that the unreasonable delay
prejudiced the State, that the post-conviction court’s application of laches was
not erroneous, and that Balderas is not entitled to relief. 3
[14] The judgment of the post-conviction court is affirmed.
May, J., and Robb, J., concur.
3
Because we find that laches operates as a bar to Balderas’s case, we need not address her other arguments.
We note briefly, however, that deciding whether Padilla retroactively applies to Indiana state criminal cases is
unnecessary. In Segura v. State, 749 N.E.2d 496 (Ind. 2001), our Supreme Court established a duty for
attorneys to advise a client about deportation consequences before pleading guilty, well before the United
States Supreme Court decided Padilla in 2010. Therefore, this obligation already existed in Indiana; to
determine Padilla’s retroactivity would be a redundant exercise.
Court of Appeals of Indiana | Opinion 17A-PC-3014 | December 21, 2018 Page 7 of 7